24:0087(10)NG - AFSCME Local 2478 and Commission on Civil Rights -- 1986 FLRAdec NG

 24 FLRA No. 10
 
 AMERICAN FEDERATION OF STATE, 
 COUNTY AND MUNICIPAL EMPLOYEES, 
 LOCAL 2478
 Union
 
 and
 
 U.S. COMMISSION ON CIVIL 
 RIGHTS
 Agency
 
                                            Case No. 0-NG-1068
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of two Union proposals.  We hold Union Proposal 1 to be
 nonnegotiable and Union Proposal 2 to be negotiable.
 
                           II.  Union Proposal 1
 
          Article 29, Section 3.  (Disciplinary Actions)
 
          When it is determined by the Employer that disciplinary action
       is necessary, the employee will be promptly informed of the
       reasons why the action is being taken.  Such action will be
       accomplished with dispatch and normally be initiated within 30
       days after management becomes aware of the alleged occurrence.  In
       no case will the Employer bring disciplinary action against an
       employee for occurrences which are alleged to have happened more
       than one year previously.  (Only the underscored portion is in
       dispute.)
 
                       A.  Positions of the Parties
 
    The Agency contends that this proposal is outside the duty to bargain
 because it interferes with management's right to discipline employees,
 under section 7106(a)(2)(A) of the Statute.  The Union contends that the
 proposal would merely protect employees' rights by insuring prompt
 disciplinary action and would not violate the Agency's right to
 discipline its employees.  It also contends that by negotiating over the
 proposal the Agency would not endanger its ability to proceed with
 disciplinary actions when such actions are required by law, as the
 parties' agreement contains provisions to that effect.
 
                               B.  Analysis
 
    The proposal would prohibit the Agency from taking any disciplinary
 action against employees for occurrences alleged to have happened more
 than one year previously.  In our opinion, this proposal is to the same
 effect as a provision found nonnegotiable in National Federation of
 Federal Employees, Local 615 and National Park Service, Sequoia and
 Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318
 (1985) (Provision 2), affirmed sub nom. National Federation of Federal
 Employees, Local 615 v. FLRA, No. 85-1299 (D.C. Cir. Sept. 12, 1986),
 which required that investigations of incidents for which disciplinary
 action may be taken normally be initiated within 60 days of the incident
 or within 60 days after the employer becomes aware of the incident.  The
 Authority noted that by establishing a contractual "statute of
 limitations" which would preclude it from investigating incidents which
 may result in the disciplining of employees, the provision would, in
 certain circumstances, prevent the agency from acting at all with
 respect to that right.  See also American Federation of Government
 Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters,
 XVII Airborne Corps and Fort Bragg, North Carolina, 17 FLRA 752 (1985)
 (Union Proposal 3).  The proposal in this case, likewise, would
 establish a contractual limitation which would, in certain
 circumstances, prevent the Agency from acting at all with respect to its
 right to discipline employees.
 
    As a result of this analysis, the Authority finds it unnecessary to
 address the Union's additional contention.
 
                              C.  Conclusion
 
    For the reasons given here and in the cases cited in the analysis,
 Union Proposal 1 is inconsistent with management's right to discipline
 employees under section 7106(a)(2)(A) of the Statute and is, therefore,
 outside the duty to bargain.
 
                          III.  Union Proposal 2
 
          Article 32, Section 4.  (Arbitration)
 
          If for any reason the Employer refuses to participate in the
       selection of an arbitrator, the Federal Mediation and Conciliation
       Service shall be empowered to make a direct designation of an
       arbitrator to hear the case.
 
                       A.  Positions of the Parties
 
    The Agency did not include in its statement of position any
 contentions in support of its allegation that this proposal is
 nonnegotiable.  The Union contends that the proposal merely requires the
 Agency to participate in the arbitration process, as required by section
 7121(b)(3)(C) of the Statute.  /1/
 
                        B.  Analysis and Conclusion
 
    This proposal seeks to empower the Federal Mediation and Conciliation
 Service (FMCS), an entity not a party to the collective bargaining
 agreement, to directly designate an arbitrator to hear a case if the
 Agency refuses to participate in the selection of an arbitrator.  As
 indicated above, the Agency provides no support for its allegation that
 the proposal is nonnegotiable, nor does it appear to be so.  We note
 that 29 C.F.R. Section 1404.13(c), /2/ issued by the FMCS pursuant to
 Title II of the Labor-Management Relations Act of 1947 (Pub. L. 80-101)
 as amended in 1959 (Pub. L. 86-257) and 1974 (Pub. L. 93-360), is
 applicable to "all persons or parties seeking to obtain from FMCS either
 names or panels of names of arbitrators in connection with disputes
 which are submitted to arbitration or fact-finding." That provision
 expressly states that the FMCS will make a direct appointment of an
 arbitrator when authorized by an applicable collective bargaining
 agreement.  Thus, the proposal appears to be fully consistent with
 FMCS's regulations.  Since the Agency has made no showing, nor is it
 otherwise apparent, that this proposal is nonnegotiable, we conclude
 that Union Proposal 2 is within the duty to bargain.
 
                                IV.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, the Agency shall upon request (or as otherwise agreed to by
 the parties) bargain concerning Union Proposal 2.  /3/ The petition for
 review as it relates to Union Proposal 1 is dismissed.
 
    Issued, Washington, D.C., November 19, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) Section 7121(b)(3)(C) of the Statute requires that any negotiated
 grievance procedure must include procedures that "provide that any
 grievance not satisfactorily settled under the negotiated grievance
 procedure shall be subject to binding arbitration which may be invoked
 by either the exclusive representative or the agency(.)"
 
    (2) 29 C.F.R. 1404.13(c) provides, in pertinent part, as follows:
 
          (c) The Service will, on joint or unilateral request of the
       parties, submit a panel or, when the applicable collective
       bargaining agreement authorizes, will make a direct appointment of
       an arbitrator(.)
 
    (3) In finding this proposal within the duty to bargain, the
 Authority makes no judgment as to its merits.